Bidmonta Pty Limited v Debra Kay McMillan [2011] NSWSC 202

Bidmonta Pty Limited v Debra Kay McMillan [2011] NSWSC 202

Given the second defendant's unauthorised conduct causing litigation against the first defendant, it is fair to impose liability on the second defendant for the costs incurred by the plaintiff on account of the first defendant. The mutuality issue is not justiciable at the time of orders, and the Court declines to give an advisory opinion.

Parties
Plaintiff: Bidmonta Pty Limited; First Defendant: Debra Kay McMillan; Second Defendant: David Robert McMillan; Third Defendant: Bobbette Lee McMillan; Fourth Defendant: Commonwealth Bank of Australia; Fifth Defendant: Perpetual Limited; Sixth Defendant: Perpetual Trustee Victoria Limited
Jurisdiction
Australia
Judgment Date
29 March 2011
Procedural Posture
Civil / Final Orders After Settlement
Outcome
Judgment in favour of the plaintiff against the second defendant with detailed consequential orders; dismissal of other proceedings; various costs orders.
Legal Topics
Costs, Settlement, Dependent and Independent Obligations, Bullock Order, Mortgage, Guarantee, Unauthorised Signature on Loan
Civil Procedure Contract Law Costs Settlement Dependent and Independent Obligations Bullock Order Mortgage Guarantee +1 more

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Parties

Bidmonta Pty Limited

Plaintiff

Debra Kay McMillan

First Defendant

David Robert McMillan

Second Defendant

Bobbette Lee McMillan

Third Defendant

Commonwealth Bank of Australia

Fourth Defendant

Perpetual Limited

Fifth Defendant

Perpetual Trustee Victoria Limited

Sixth Defendant

Procedural Posture

Civil / Final Orders After Settlement

Legal Issues

  1. 1 Whether obligations arising from settlement are dependent or independent
  2. 2 Entitlement to Bullock order for costs
  3. 3 Appropriate costs orders in settled proceedings involving unauthorised mortgage and loan documents

Ratio Decidendi

Given the second defendant's unauthorised conduct causing litigation against the first defendant, it is fair to impose liability on the second defendant for the costs incurred by the plaintiff on account of the first defendant. The mutuality issue is not justiciable at the time of orders, and the Court declines to give an advisory opinion.

Court Disposition

Judgment in favour of the plaintiff against the second defendant with detailed consequential orders; dismissal of other proceedings; various costs orders.

Orders

  • Judgment in favour of the plaintiff against the second defendant in the sum of $160,180.92 representing $127,000 plus $33,180.92 interest from 1 May 2008 to 28 February 2011 at Civil Procedure Act rates.
  • Plaintiff to provide to the second defendant an executed withdrawal of caveat in relation to property at 565 Ebenezer Road within 28 days.